Date for Full Court decision on appeal of elections petition ruling to be announced soon

The Full Court is currently reviewing written submissions and will soon announce the date for its decision in an appeal filed in relation to a previous ruling in the election petition case brought by the opposition PPP/C parliamentarian Ganga Persaud.

Chief Election Officer Keith Lowenfield had appealed the decision of former acting Chief Justice Ian Chang to overrule his summons to have the petition struck out.

Stabroek News was recently informed that case is currently before Justice Roxane George and Justice Franklin Holder and that a decision on the appeal filed by attorney Roysdale Forde will soon be made. This newspaper understands that during submissions opposition attorney Anil Nandlall made the point that the appeal was filed to the wrong court; that it should have been the Court of Appeal instead of the Full Court.

Persaud had filed a petition calling on the High Court to declare the entire May 11, 2015 general elections process flawed and containing many procedural errors and so many instances of fraudulent and/or suspicious actions that “the results that have been derived from the process cannot be credibly deemed to represent accurately the will of the electorate.”

He had also asked the court to order a recount of all ballots cast in the elections.

The PPP/C had refused to accept that the APNU+AFC alliance won the 2015 elections and that coalition leader David Granger is the President. Former president Donald Ramotar and other senior members of the party accused the coalition of rigging the elections, while challenging pronouncements from observer missions that the elections were free and fair.

Concerns have been expressed that the court is taking too long to deliberate on the case given that the APNU+AFC coalition government is almost halfway through its five-year term.

Lowenfield subsequently asked the High Court to strike out the elections petition, saying it is “materially defective” because it failed to establish any grounds to vitiate the polls. He contended that the petition had no material facts and should be struck out.

On February 19 last year, Justice Chang, days before retiring from office, overruled Lowenfield’s summons resulting in an appeal being filed in the Full Court. Among the 14 grounds for the appeal is his argument that Justice Chang erred in law when he failed to direct his mind to specific paragraphs of the petition to be struck out for being in breach of Section 140 (2) of the Representation of the People’s Act.

Lowenfield also contended that the judge erred in law when he failed to direct his mind to the summons and apply the proper principles applicable to the striking out of the petition on grounds that it disclosed no reasonable cause of action and was frivolous and vexatious, embarrassing and oppressive and an abuse of the process of the court.

He further contended that the judge erred in law when he misconstrued Section 42 of the National Assembly Validity of Election Act in a restrictive manner.

According to Lowenfield, the former chief justice again erred when he, notwithstanding his finding that Section 42 of the National Assembly Validity of Election Act must be construed in the context of Article 163 (1) and Article 163 (4) (c)— which enables Parliament to make provisions with respect to the Practice and Procedure of the High Court in relation to “the jurisdiction and powers conferred upon it”—did not rule that the court had the jurisdiction to make the orders sought in the summons as it relates to the exclusive jurisdiction conferred on the High Court under Article 163 (1) of the Constitution.

Lowenfield advanced too, that the judge erred when he ruled that Section 42 of the National Assembly Validity of Election Act, in its widest construction, would constitute an enlargement of the jurisdiction of the High Court conferred on it by Article 163 (1) of the Constitution.

He also appealed what he contended was Justice Chang’s failure to find that the High Court, as stated in the National Assembly Validity of Election Act, is the same High Court established and constituted under the Constitution and the High Court Act.

Lowenfield also contended that the judge erred when he failed to find that Section 42 of the National Assembly Validity of Election Act was a specific legislative expression of the extant powers, authority and jurisdiction which was conferred on the High Court as constituted by the constitution and the High Court Act.

He further contended that the judge erred when he made a finding and determination with respect to Article 163 (1) of the Constitution and its relationship with Section 42 of the National Assembly Validity of Election Act, without affording the appellant an opportunity of responding to the said finding.

Lowenfield also contended that the judge erred in finding that the relief sought in the summons was excluded and prohibited by virtue of the jurisdiction conferred on the High Court by Article 163 (1) of the Constitution.

The High Court had been asked to rule on whether the pleadings, as revealed in the election petition, disclosed a cause of action. Justice Chang ruled that the court could not make such a determination since it might mean that he would in essence be determining the elections petition itself.

Of the ruling, Forde had said, “The decision, in my opinion, is highly flawed and it is likely that an appeal will be filed.” Counsel had thereafter signalled his intention to appeal.